MAGNIFICENT MEN! Leadership Lunch

Honourable Jack Major C.C., Q.C.

Friday, March 15.13 – Crystal Ballroom, Fairmont Palliser Hotel, Calgary

Notes from his Speech at Magnificent Men! Leadership Lunch, Fairmont Palliser, Calgary, AB by Don MacInnis

KenDryden


 

I am pleased to be here today to speak in aid of the establishment of Canadian Center for Male Survivors of Child Sexual Abuse (C.C. 4MS) whose motto, as you know, is H.E.A.R. – Healing, Education, Advocacy and Research.

You have heard some of the statistics – 1 in 3 women will be sexually abused before the age of 18; and 1 out 30 after that age.  1 in 6 is a statistic given for men who will be sexually abused before the age of 18.

If these statistics were applied to any known illness, it would qualify as an epidemic.

But none of this is news to Canadian Center for Males Survivors (C.C. 4MS), and that is what drives their efforts.

The task at hand is formidable but is in the right hands.

15 talented and busy people have volunteered to serve as C.E.O., directors and on the Treatment Advisory Council.

I have been asked to explain why I became a lawyer, then a Judge of the S.C.C. To answer the first question, you could say I became a lawyer because when I graduated from Commerce in 1953, I didn’t have a job.

The reason for that may be evident from my experience with Bell Canada. To set the scene, in 1953, it was the post-war, a big economic growth and likely the best job market for graduates maybe ever.

Various companies were actively recruiting on campuses so I signed up to be interviewed by Bell. I still remember the day in detail. I was first in the line of interviews.   I met my interviewer across a table. He wore a brown suit vest, of course; somber doesn’t quite describe him.

The interview began:

Why do you want to work for Bell?

I couldn’t answer as I had never thought I did.

From that start the interview deteriorated:

Are you on the executive of the Student’s Council now or ever, class president, active in the community? No being the answer to all these questions.

Finally he said, “I have asked you a lot of questions. Did you have anything you would like to know about Bell?”

There wasn’t but I thought I should say something so I asked – “What kind of pension plan do you have?”

The interview ended.  No job offer, not an acknowledgement letter, nothing. He didn’t believe it had happened. Incidentally, all 5 of the other interviewees went to work for Bell.

Following my employment failures, the next logical step was law school. I should explain that in my day, enrolling in Law School was not difficult. There were no LSAT exams nor were there more applications than places. You more or less showed up after Labour Day, which I did.

While getting into the U of T Law School was easy, getting out required some aptitude and long hours. The culling process took place in 1st year when about 1/3 of the class failed.

Having escaped the culling and after graduating, I came to Calgary in 1957. My original purpose was to see the West and return to Ontario. That happened but instead of it being a year or so, it took 36 years.   Evidence of a slow learner?!

I started and stayed at Bennett Jones, then known as Chambers Might, 16 lawyers in the Lancaster Building).  Now there are 300 +; about 170 in Calgary.

In any event, right from the start, I showed a remarkable talent for the law.

During the first week of my legal career, one of the seasoned lawyers at the firm asked me to make a foreclosure application the next Monday on a farm land mortgage. This was called a Chamber’s Application. I explained that I didn’t know what Chamber’s was or how to proceed. He said, “There is nothing to it. Go a little early and you can watch a few applications before yours.”

As it turned out, there were no applications ahead of me. I was 1st up.

My mouth was so dry I couldn’t speak. However, as I stood up, the Judge was looking through the documents and thinking out loud. “This is a foreclosure application,” he said, “and the arrears are too high. There is no reason not to grant the application.” which he did, a little unusual on farmland at the time but I had the good sense to just sit down.

The salvia quickly returned to my mouth and by the time I returned to the office, I had no difficulty explaining the fine result I had achieved — if not the process.

Within a few weeks, another file came in. It was a Sergeant in the army accused of stealing army property. If convicted, he would be dishonourably discharged, his pension forfeited and facing a bleak future. It was for all these reasons he wanted top counsel and retained the late Chief Justice Milvain, who in 1957, was clearly among the very best counsels in Alberta. My job was to appear at Provincial Court to get a date for trial.

Well, there were a number of delays resulting in adjournments. Each time the Sergeant and I went to Court, I would spend time telling him not to worry; he had the best lawyer in Alberta to defend him. “Let Milvain do the worrying; not you,” I kept saying.

On or about our 5th application for adjournment, Magistrate Read said. “This has gone on too long; this is the last adjournment.  The trial will proceed without fail next Monday.”

I reported this to Milvain who said he couldn’t make it on that day so I asked, “Who will defend the Sergeant”?  “I guess you will” he said.

Now remember I had spent several weeks assuring the accused how fortunate he was to have selected his lawyer wisely, getting the best available. Now I had to tell him his walking companion for the last 6 weeks was now his lawyer who had no experience at all.

I am not sure he understood that this was really the trial, that he could be out of the army and maybe in jail before the day was out.

When the case was called, Magistrate Read said to the Crown Prosecutor, “I don’t think the indictment as written discloses an offence. It requires an amendment.” The experienced Prosecutor took some exception to this and said in effect the indictment was fine as written and did not need an amendment. “If you feel that way,” said the Magistrate, “the charge is dismissed.”

So there I was!  I hadn’t said a word and had two victories!

However, once I started talking, the success rate dropped.

After 36 years in practice, I was appointed to the Alberta Court of Appeal in 1991 and to the S.C.C. in 1992 where I stayed until mandatory retirement at 75. My date of choice of retirement was 2 months early on Christmas Day 2005. Some said it was a Christmas present to the nation.

The S.C.C. was obviously a new challenge. I had argued a number of cases in the S.C. but there is a difference when you make the argument as opposed to making the decision. As counsel, you argue a position; as a Judge, you reach a result.

The S.C. has 9 Judges. The makeup is by traditional demographics. 3 Judges from Ontario, 3 from Quebec, 1 from the Maritimes and 2 from the Western Provinces and B.C.

My first case was January 1993, Province of B.C. v. Berq from the B.C. Court of Appeal. It was a Human Rights Case. Berq was a post graduate student who may have suffered from something like bipolar and had demonstrated unusual behaviour, writing strange messages on mirrors, such as death, salvation and others. All post graduate students had a key to the post-graduate new facility but the administration would not give Ms. Berq a key and a professor would not write a letter of recommendation for her. The B.C. Human Rights Commission found discrimination. The B.C. Court of Appeal then said the requests by Berq were for services not unusually granted to the public so no discrimination and allowed the appeal.

When it reached the S.C., the case took most of the day and, at its conclusion, there was, as there always is, a conference for the Judges to express their preliminary opinion. It is the tradition that the most recently appointed Judge goes first which was me so I said I agreed with the B.C. Court of Appeal and that the appeal should be dismissed.

The other 8 Judges in order of seniority then expressed their views. At the end, I was out voted 8 to 1. The only satisfaction I had was my conviction that I was right.

In any event, the majority agreed on a judgment and I wrote the single dissent, all of which now gathers dust on the shelves of Court Houses and University libraries as well as the web across Canada.

Most people would think that I should have then realized I had a lot to learn. It may have been misplaced arrogance but my modest view remained and remains that it was the other 8 Judges that had misread the issue and  have something to learn from the West.

The majority of judgments are usually unanimous but 5-4, 6-3 or 5-2-2 are not unusual; but a single dissent is not common. It was not a great start but what can you do when you are right.

That was the first case but I have been asked what was the most difficult. There were a number, such as the Quebec Succession Referendum which led to the Clarity Act. It was important to the nation but so were Indian Rights and innumerable other claims.  Some of the most important claims are quite sterile.  You objectively search for the answer.  You read cases, factums and briefs and listen to counsel who is not always interesting — but some cases are different.

The most emotional and difficult case (for me?) was brought by M. Sue Rodriguez. It was argued on the constitutional basis of the right inherent in the Charter of Rights that freedom of the individual encompasses the right to obtain help commit suicide when unable to do so alone.

Her compelling argument was – “If I wanted to die today, I could lawfully commit suicide.”

She was correct, but said she didn’t want to die that day. She had a young son she wanted to spend as much time with as she could.

Sue said, “I want to live as long as I can but when the time comes that I am helpless, I want the right to have a doctor assist me to do then what I can do myself now.”

That was a moving argument.  The case was heard in the early spring but the decision took until the fall. It was finally decided by a 5-4 vote that there was no constitutional right to assisted suicide.  I voted with the majority.

Now Parliament could resolve the issue by amending the C.C. but it is obvious that opinion is divided among the public and no matter how an M.P. voted, he/she would lose the support of a number of voters. Parliament hasn’t touched it and are apparently content to leave it to the Courts. That is an example of judges being activists. The Court will always act. Parliament tends to court votes instead.

Sue Rodriguez case was heard in 1993.  Last spring, a Supreme Court Judge in B.C. came to a different conclusion. If that case gets to the S.C., there is only 1 Judge left from the Rodriguez case and that is Chief Justice McLaughlin, who incidentally, voted in favour of Ms. Rodriguez and wrote the minority dissent.

The Supreme Court, for almost 14 years, was a unique but unusual opportunity for me.

It is nothing you can plan for and a number of things have to be in place at the same time:

  1. Geographic’s;
  2. Age; and
  3. Timing.

But if it does occur, it must be to most lawyers as it was to me a surprise, doubt and a challenge.

One aspect of being on that Court is the knowledge that the court’s decision is final for the litigants does, as they say, focus the mind. One party is going to fail. Your decisions are going to be criticized, at least by the law school professors and the media, some of whom harbor the belief that they have a better answer and they might.

A legitimate question is how can you at the S.C. be so sure you are right. The answer to that is we are not sure we are right and sometimes we are wrong. Your role there is to put your best effort into determining the appeal and to articulate your reasons when you write. It is your best informed opinion at the time.

The responsibility at the end of the day in civil cases is to decide on the civil standard that what on a balance of probabilities is the right answer. In criminal cases, the standard is whether the conviction is clear beyond a reasonable doubt.

The history of the S.C.C. has had 3 stages. It started as an Act of Parliament in 1875 and for 2 years didn’t hear any cases.

Between 1875 and 1949, it heard some appeals from Provincial Superior Courts. I say some because the parties to lawsuits had the right to bypass the S.C. and appeal directly to the Privy Council in London. (The famous five did just that).

In 1949 the S.C. became the final appeal court for Canadians and became more active but received little public notice.

In 1982 the Charter of Rights, by an amendment to the B.N.A., became the law of Canada and the profile of the S.C. virtually exploded.

The reason for this was Canada became a constitutional government, not a parliamentary one. For the first time, the validity of a law passed by Parliament or Provincial Legislation could be struck down if it offended the Charter even though the particular law fell within the jurisdiction of the body enacting it.

For the 1st time in our history, the Charter of Rights equipped individuals to challenge laws passed by Government. There are many examples of where that has been attempted with mixed success. Setting aside the Lord’s Day Act and Sunday closing is one.

Traditionalists complain about this, citing activist Judges running the country and not Parliament.  Polls indicate that is a minority view. Most Canadians embrace the rights they now have by virtue of the Charter.

In addition, the Government has an overriding provision in Section 33 where they can legislate priority of the law over the decision of the court. The Federal Government has never used it, only the Province of Quebec had done so  – once – in respect to Bill 101 on language rights.

There is reason for the reluctance of the Government to use Section 33 but that is for another day but one reason is how would Parliament like its headline. Politicians overrule the Chart of Rights.

Given the experience I have described, should young lawyers aspire to being Justices on that Court? My answer is No! What young lawyers should ascribe to is being successful lawyers! Aspiring for any appointed office is like buying a lottery ticket.

The test of success is sometimes said to be having your performance equal to your potential. If you can do that you will find both satisfaction and contentment and invariable success if not fulfillment of your dreams. That principle is not exclusive to lawyers.

That is something you can achieve. It depends on you. Aspiring to the bench depends on the decision of someone else. It’s out of your control. Success does not preclude reaching goals but that is not the aim. It is within the ability of all of us to have our performance equal our ability.

There are innumerable definitions of success. Churchill describes success as going from failure to failure without loss of enthusiasm.

I prefer the anonymous quote that says God gave us 2 ends – one to sit on and one to think with. Success depends on which you use. Heads you win, tails you lose. So flip the coin.
Good luck!

 

Thank you!

 

Justice Jack Major

Legal Counsel, Bennett Jones

Former Justice, Supreme Court of Canada